FILED
NOT FOR PUBLICATION AUG 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YARRY FINE, No. 12-56411
Plaintiff - Appellant, D.C. No. 3:12-cv-00165-WQH-
BGS
v.
CAMBRIDGE INTERNATIONAL MEMORANDUM*
SYSTEMS, INC., a Virginia corporation;
HEATHER SUMMERS; EDWARD
HUGHES, Virginia residents,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted August 8, 2014**
Pasadena, California
Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.
Appellant Yarry Fine appeals from the judgment of the district court: (1)
dismissing this action for improper venue under 28 U.S.C. § 1406(a); and (2)
dismissing all claims against Heather Summers and Edward Hughes (the individual
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
defendants) for lack of personal jurisdiction. Because the parties are familiar with
the facts and procedural history of this case, we repeat only those facts necessary to
resolve the issues raised on appeal. We reverse in part, vacate in part, and remand.
This action arises out of the termination of Fine from his employment with
Defendant-Appellee Cambridge International Systems, Inc. Fine is a citizen of
California. Cambridge is a citizen of Virginia. The individual defendants are
citizens of Virginia. Fine’s contract with Cambridge contains a forum selection
clause, stating that any dispute relating to Fine’s employment must be brought in
Virginia.
Fine filed an action in the Superior Court of California alleging that his
employment was terminated in violation of California law. Defendants removed
the case to the United States District Court for the Southern District of California
on the grounds of diversity of citizenship, and subsequently filed: (1) a motion to
dismiss for improper venue under Rule 12(b)(3); and (2) a motion to dismiss all
claims against the individual defendants for lack of personal jurisdiction. The
district court granted both motions. The district court dismissed the complaint as to
Cambridge under Rule 12(b)(3) because the parties’ forum selection clause states
that any dispute relating to Fine’s employment must be brought in Virginia. The
court held that California does not have specific jurisdiction over the individual
defendants.
2
In Atlantic Marine Construction Company, Inc. v. United States District
Court for the Western District of Texas, 134 S. Ct. 568 (2013)—which was decided
after the district court issued its decision in this case—the Supreme Court clarified
that Section 1406(a) and Rule 12(b)(3) allow for dismissal only when venue is
“wrong” or “improper.” Id. at 577. Whether venue is “wrong” or “improper”
depends exclusively on whether the court in which the case was brought satisfies
the requirements of federal venue laws, and the existence of a forum selection
clause does not render venue in a court “wrong” or “improper” under these rules.
Id. at 578–79. The Court further held that a forum selection clause may be enforced
by a motion to transfer under 28 U.S.C. § 1404(a). Id. at 579. Accordingly, under
Atlantic Marine, the district court should have assessed the effect of the forum
selection clause only under Section 1404(a). We therefore reverse the portion of
the district court’s order dismissing the action as to Cambridge, and we remand
with instructions that the district court consider Fine’s motion to transfer under
Section 1404(a).1
1
We note that Fine originally filed a motion to dismiss for lack of personal
jurisdiction or for improper venue under Fed. R. Civ. P. 12(b)(3), or in the
alternative to transfer to the Eastern District of Virginia. While Fine did not specify
the statute under which he sought to transfer this case, his failure to do so does not
preclude the district court from considering his motion to transfer under 28 U.S.C.
§ 1404. Atlantic Marine calls for such a consideration. Id. at 578.
3
It was not necessary for the district court to assess whether it has personal
jurisdiction over the individual defendants, and we decline to reach this issue. See
Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007)
(“[A] court need not resolve whether it has . . . personal jurisdiction over the
defendant if it determines that, in any event, a foreign tribunal is plainly the more
suitable arbiter of the merits of the case.”). On remand, the district court need only
address personal jurisdiction if it declines to transfer this action under Section
1404(a).2 We therefore vacate the portion of the district court’s order dismissing
the individual defendants for lack of jurisdiction.
REVERSED IN PART, VACATED IN PART, AND REMANDED.
2
If the district court decides to transfer venue, the transferee district court
will determine the question of personal jurisdiction, should it be raised.
4